IN RE: DEVIN C. (2019)

Order, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about October 20, 2017, which granted petitioner father sole legal and physical custody of the subject children, unanimously affirmed, without costs.

The court's determination, after a full evidentiary hearing, that the award of sole legal and physical custody to the father would serve the best interests of the children has a sound and substantial basis in the record (see Domestic Relations Law § 70[a]; Eschbach v. Eschbach, 56 N.Y.2d 167, 171–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982]). The evidence shows that while both parties have cared for the children, the children have lived with the father since February 2016, and he takes care of their physical, emotional, financial, educational, and medical needs. He has enrolled the children in school, updated their immunizations, moved them to a spacious home, and enrolled them in numerous activities. The evidence also showed that respondent mother's history does not necessarily reflect that she would provide a more stable home environment (see Matter of Celina S. v. Donald S., 133 A.D.3d 471, 20 N.Y.S.3d 355 [1st Dept. 2015]). The court credited the evidence that showed that the mother was incarcerated for a short time in 2013 resulting in the father taking care of the children. She also failed to have the children immunized in a timely manner, would disappear for short periods of time while the children were visiting with their father, and chose to move away from the father to Pennsylvania.

While there was some evidence that the mother was more likely to foster a continued relationship between the children and their father, this one factor is not determinative and the court must consider the totality of the circumstances (Eschbach at 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Melissa C.D. v. Rene I.D., 117 A.D.3d 407, 408–409, 985 N.Y.S.2d 28 [1st Dept. 2014]). Furthermore, there was no indication that the father would not follow a court-ordered visitation schedule or would violate a court order regarding phone and video contact with the mother.